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Wills FAQ

What you need to know about wills—the most basic estate planning document.

Nolo Nolo

What is a will?

A will, sometimes called a "last will and testament," is a document that states your final wishes, including how you want to distribute your property.

What makes a will legal?

When you make a will, you must meet three technical requirements. How do you make a will legal?

  1. You must be an adult (18 or over, with a few very limited exceptions) and of sound mind.
  2. The will must be signed by at least two witnesses. The witnesses must watch you sign the will, though they don't need to read it. Your witnesses, in most states, must be people who won't inherit anything under the will. (If your state allows holographic wills, even an unwitnessed, handwritten will might be valid. See below.)
  3. You must date and sign the will.

Contrary to popular belief, you don't have to have your will notarized. In many states, though, if you and your witnesses sign an affidavit (sworn statement) before a notary public, you can help simplify the court procedures required to prove the validity of the will after you die.

Some also want to know whether wills need to be recorded. You do not have to record or file your will with any government agency, although it can be recorded or filed in a few states. Just keep your will in a safe, accessible place and be sure the person in charge of winding up your affairs (your executor) knows where it is.

Creating a basic will rarely involves complicated legal rules, and most people can even create their own will with the aid of a good book or a reputable program. But if you have questions that aren't answered by the resource you're relying on, or your situation is unusual, it may be worth it to see a good lawyer. For more information, see Making a Will: Are Lawyers Optional?

I don't have much property. Can't I just make a handwritten will?

Handwritten, unwitnessed wills, called holographic wills, are legal in about half of the states. States can vary in their requirements. Generally, to be valid, all or part of a holographic will must be written and signed in the handwriting of the person making the will. In some states, a holographic will must also be dated. Some states allow you to use a fill-in-the-blanks form if the rest of the will is handwritten and the will is properly dated and signed.

A holographic will is better than nothing if it's valid in your state. But a will signed in front of witnesses is better. If a holographic will goes before a probate court, the court may be more strict when examining it to be sure it's legitimate. And if you don't have guidance—from a good self-help resource or a good lawyer—it's easy to write something that turns out to be ambiguous or even contrary to what you intended.

For information on making a valid but simple will, see The Simple Will: No Frills, No Fuss, No Anxiety. It is perfectly legal to make your own will, but you'll want to make sure your document conforms with your state's laws.

Can I use my will to name a guardian to care for my young children and manage their property?

Yes. If both parents of a child die or become otherwise unable to care for a minor child, another adult—called a "personal guardian"—must step in. The personal guardian will be responsible for raising your children until they become legal adults. You and the child's other parent can use your wills to nominate someone to fill this position. To avoid conflicts, you should both name the same person. For more information, see Guardianship for Your Children.

You can choose that same guardian to manage property that you leave to your minor children or you can name someone different. You can name a "property guardian," a "custodian," or a "trustee" to manage the property:

  • Name a property guardian. You can simply name a property guardian to manage whatever property the child inherits, if there's no other mechanism (a trust, for example) to handle it. The guardian will manage the property until the child reaches the age of 18.
  • Name a custodian under the Uniform Transfers to Minors Act (UTMA). In every state, you can choose a custodian to manage property you are leaving to a child. The custodian will step in to manage the property until the child reaches the age specified by your state's law—18 in a few states, 21 in most, and 25 in several others.
  • Set up a trust for each child. You can use your will to create a trust for any property the child inherits and to name a trustee to handle the trust property until the child reaches the age you specify.
  • Set up a "pot trust." If you have more than one child, you may want to set up just one trust for all of them. This arrangement is usually called a pot trust. You name a trustee to decide what each child needs and to spend money accordingly.

For more information, see Leaving an Inheritance for Children.

Must I leave something to my spouse and children?

Disinheriting spouses. The law protects surviving spouses from being left with nothing. It does so in one of three ways, depending on your state:

  1. Spousal share of the estate. In most states, if your spouse doesn't inherit much or anything under your will, your spouse can go to probate court and claim a portion of your estate (usually one-third to one-half). This is true no matter what your will provides. In other words, your surviving spouse has a legal right to claim a substantial portion of your property after you die. But your spouse must take the step of going to court and claiming that share.
  2. Spousal share of augmented estate. Some states also allow the surviving spouse to choose to claim a share of the "augmented estate," which protects the spouse in the event that you give away large amounts of property before you die. The rules are complicated, but the takeaway is that you might want to think twice about giving away property during your lifetime as a workaround to the spousal share.
  3. Community property. In community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, or Wisconsin), your spouse automatically owns half of all the property and earnings (with a few exceptions) acquired by either of you during your marriage. This is true during your lifetime, before you die. Because a married couple's property is shared equally in this way, a surviving spouse is usually already assured of having at least half of the couple's property. So you can leave your half of the community property, and your separate property, to anyone you choose. (This might also apply to a few additional states, such as Alaska, Kentucky, South Dakota, and Tennessee, if you created a written community property agreement or a special community property trust with your spouse.)

If you don't plan to leave at least half of your property to your spouse, either through your will or outside it, you should consult a lawyer—unless your spouse willingly consents in writing to your plan.

Disinheriting children. Generally, it's perfectly legal to disinherit a child. If, however, it appears that you didn't mean to disinherit a child—the most common example is a child born after you made your will—or if your intent is ambiguous, then the child might have the right to claim part of your property. For more information, see Inheritance Rights.

Can someone challenge my will after I die?

Very few wills are ever challenged in court. When they are, it's usually by a close relative who feels somehow cheated out of a share of the deceased person's property. To get an entire will invalidated, someone must go to court and prove that it suffers from a fatal flaw: the signature was forged, you weren't of sound mind when you made the will, or you were unduly influenced by someone.

For more information on how a will can be challenged in court, see Grounds for Challenging a Will.

How do I choose the right product to help me make a will?

Nolo offers two products to help you make your will. Which one you should use depends on the size of your estate, how you want to leave your property, and whether you prefer to use software or an online product, or prefer a good old-fashioned book.

Quicken WillMaker is ideal for nearly any size estate and almost any estate plan. You can use WillMaker to make a will as well as other estate planning documents, such as living trusts, health care directives, powers of attorney, and transfer on death deeds—WillMaker comes with all of these as well as many other useful forms.

The Quick and Legal Will Book is best if you have a small estate, simple estate planning goals, and prefer to use a book with word processing documents on CD-ROM. The Quick and Legal Will Book offers a choice of five basic will forms.

To see everything Nolo has to offer when it comes to making a will and planning your estate, visit our Wills, Trusts & Estates Center.

What happens if I die without a legal will?

If you don't make a will or use some other legal method to transfer your property when you die, state law called "intestacy laws" will determine what happens to your property. Each state sets out an order of priority for your surviving relatives. Generally, it will go to your spouse and children or, if you have neither, to your next closest relatives. If no relatives (not even distant ones) can be found to inherit your property, it will go to the state.

In addition, in the absence of a will, and if the other parent is unavailable or unfit, a court will name a guardian to care for your children and their property.

Beware that if you are part of an unmarried couple, your surviving partner will not inherit anything, so you might be especially motivated to create a solid estate plan. (A few states have exceptions for registered domestic partners.)

To learn more about what happens if you die without a will, read How Is an Estate Settled If There's No Will: Intestate Succession.

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